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Heard v. Strange

United States District Court, E.D. Michigan, Southern Division

May 10, 2019

LAMONT HEARD, Plaintiff,



          Patricia T. Morris United States Magistrate Judge


         For the reasons set forth below, IT IS RECOMMENDED that Defendants'[1]Motion for Partial Summary Judgment, (R. 43), be GRANTED IN PART, and that Plaintiff Lamont Heard's Motion for Summary Judgment, (R. 46), be DENIED.

         If the Court adopts this Report and Recommendation in full, it will:

• Dismiss defendants Adam Douglas and Jeffery Oosterhof[2] because Plaintiff failed to properly exhaust any claims against them.
• Dismiss Plaintiff's claims against defendants Cedric Griffey and Scott Schooley based on his housing unit transfer (January 2017 grievance). Plaintiff's claims against Griffey and Schooley based on his prison transfer (July 2017 grievance) would remain.
• Make no changes as to defendants Yarnice Shannon or Kyle Strange.

         II. REPORT

         A. Introduction

         On November 19, 2018, Defendants filed a motion for partial summary judgment based on the affirmative defense that Plaintiff had failed to properly exhaust his administrative remedies, (R. 43); Plaintiff responded, (R. 47), and Defendants replied (R. 53). On December 11, 2018, Plaintiff filed his own motion for summary judgment, (R. 46); Defendants responded, and Plaintiff replied, (R. 55). The cross-motions are before me by order of reference, (R. 9), and are ready for resolution.

         B. Factual & Procedural History

         This case centers on Plaintiff's January 2017 transfer from one housing unit to another within Thumb Correctional Facility (TCF), and his June 2017 transfer from TCF to G. Robert Correctional Facility (JCF).[3] (Doc. 15 at PageID.196-197). Plaintiff claims the defendants, including Griffey, violated his First Amendment rights by orchestrating one or both of his transfers in retaliation for his legal activities. (Id. at PageID.203-04). When Plaintiff began collaborating with other inmates on a civil case against Michigan state officials, he says, defendant Oosterhof told other defendants that Plaintiff was actually recruiting for gangs and Oosterhof wanted him gone. (Id. at PageID.198). Defendants Douglas, Griffey, and Schooley discussed the matter at a security meeting and decided to transfer Plaintiff to a different housing unit, separating him from his co-plaintiffs in his civil case. (Id.) In January 2017, Plaintiff attempted to file a grievance against Oosterhof about that transfer, but he never received a response. (Id.; R. 47 at PageID.611-612). He also met with defendant Douglas, who told him that he needed to cease his “legal activities and group meetings, ” or he would be transferred to another prison. (Id.)

         In March 2017, “[P]laintiff was reconsidered for transfer and placed on the transfer list.” (Id. at PageID.199). As Plaintiff sees it, the only explanation for this change in his transfer status was his legal activities; Plaintiff worked as a tutor, and he had no misconduct citations. (Id.).

         On June 21, 2017, Defendant Shannon became upset that Plaintiff had waited until the end of Shannon's shift to send legal mail and told Plaintiff that he was going to talk to Strange about having him transferred. (Id.). The next day, Shannon prepared a Security Classification Screen-Review for the purpose of requesting Plaintiff's transfer. (Id.).

         Then on June 23, 2017, Strange told Plaintiff that three of the other Defendants “were tired of [P]laintiff assisting others with grievances, and lawsuits[, and] that it was time to transfer [P]laintiff.” (Id. at PageID.200). Strange said it was her decision whether to transfer Plaintiff, and she sought a promise that he would cease his legal activities. (Id.) He refused; Strange immediately instructed Shannon to take steps to transfer Plaintiff. (Id.)

         At this point in the conversation, Plaintiff explained that they could not retaliate against him for pursuing litigation, and that he would lose his job (which he needed to support his legal activities), his family would struggle to visit him at a new location, communications with his co-plaintiffs would be strained, and he would lose access to certain prison programming. (Id. at PageID.201). Unmoved, Strange replied, “[W]ho is going to stop me. You wait and see, ” and threatened to influence defendants Griffey and Schooley to support the transfer. (Id.)

         Three days later, Plaintiff was transferred to JCF, a more dangerous and restrictive prison. (Id. at PageID.202). According to Plaintiff, the consequences were severe: his new roommate, a psychiatric patient, threatened to kill him; he lost library access for a month; and all the consequences he had foretold (e.g., losing his job) came to pass. (Id. at PageID.202-203). Plaintiff filed a grievance about his transfer in July 2017, which he appealed through Step Three. (R. 43 at PageID.481-485). His grievance was denied at Step Three in October 2017, (id. at PageID.481), and he filed suit in December 2017. (R. 1).

         C. Summary Judgment Standard

         A court will grant a party's motion for summary judgment when the movant shows that “no genuine dispute as to any material fact” exists. Fed.R.Civ.P. 56(a). In reviewing the motion, the court must view all facts and inferences in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The moving party bears “the initial burden of showing the absence of a genuine issue of material fact as to an essential element of the non-movant's case.” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989) (quoting Celotex Corp. v. Cartrett, 477 U.S. 317, 323 (1986)) (internal quotation marks omitted). In making its determination, a court may consider the plausibility of the movant's evidence. Matsushita, 475 U.S. at 587-88. Summary judgment is also proper when the moving party shows that the non-moving party cannot meet its burden of proof. Celotex, 477 U.S. at 325.

         The non-moving party cannot merely rest on the pleadings in response to a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Instead, the non-moving party has an obligation to present “significant probative evidence” to show that “there is [more than] some metaphysical doubt as to the material facts.” Moore v. Philip Morris Cos., 8 F.3d 335, 339-40 (6th Cir. 1993). The non-movant cannot withhold evidence until trial or rely on speculative possibilities that material issues of fact will appear later. 10B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2739 (3d ed. 1998). “[T]o withstand a properly supported motion for summary judgment, the non-moving party must identify specific facts and affirmative evidence that contradict those offered by the moving party.” Cosmas v. Am. Express Centurion Bank, 757 F.Supp.2d 489, 492 (D. N.J. 2010). In doing so, the non-moving party cannot simply assert that the other side's evidence lacks credibility. Id. at 493. And while a pro se party's arguments are entitled to liberal construction, “this liberal standard does not . . . ‘relieve [the party] of his duty to meet the requirements necessary to defeat a motion for summary judgment.'” Veloz v. New York, 339 F.Supp.2d 505, 513 (S.D.N.Y. 2004) (quoting Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003)). “[A] pro se party's ‘bald assertion,' completely unsupported by evidence, is not sufficient to overcome a motion for summary judgment.” Lee v. Coughlin, 902 F.Supp. 424, 429 (S.D. N.Y. 1995) (quoting Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)).

         When the non-moving party fails to adequately respond to a summary judgment motion, a district court is not required to search the record to determine whether genuine issues of material fact exist. Street, 886 F.2d at 1479-80. The court will rely on the “facts presented and designated by the moving party.” Guarino v. Brookfield Twp. Trs., 980 F.2d 399, 404 (6th Cir. 1992). After examining the evidence designated by the parties, the court then determines “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so onesided that one party must prevail as a matter of law.” Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1310 (6th Cir. 1989) (quoting Anderson, 477 U.S. at 251-52). Summary judgment will not be granted “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248.

         D. Governing Law

         Congress passed the Prison Litigation Reform Act of 1995 (PLRA) in response to a “sharp rise in prisoner litigation in the federal courts.” Woodford v. Ngo, 548 U.S. 81, 83 (2006). By passing the PLRA, Congress attempted to ensure that “the flood of nonmeritorious [prisoner civil rights] claims [did] not submerge and effectively preclude consideration of the allegations with merit.” Jones v. Bock, 549 U.S. 199, 203 (2007). Congress equipped the PLRA with several mechanisms designed to reduce the quantity and increase the quality of the claims that came to federal court. Id. A “centerpiece” of the PLRA was the “invigorated” exhaustion requirement, Woodford, 548 U.S. at 84: “No action shall be brought with respect to prison conditions under [§ 1983] . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted, ” 42 U.S.C. § 1997e(a) (2000). Courts consider the PLRA's suits “brought with respect to prison conditions” to include “all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter, 534 U.S. at 532.

         The Woodford Court held that a prisoner has exhausted his or her administrative remedies when (1) no remedies currently remain available, and (2) the remedies that had been available to the prisoner were “properly” exhausted. 548 U.S. at 93. Prior to Woodford, there were conflicting interpretations of the PLRA's exhaustion requirement. Some circuits interpreted the exhaustion requirement to mean that plaintiffs must have no more administrative remedies available before bringing their cases to federal court. Id. Others interpreted it to mean that plaintiffs must have “properly” exhausted their available remedies by following the agency's procedural requirements such as “deadlines and other critical procedural rules.” Id.

         In finding that exhaustion of remedies required “proper” exhaustion, the Court was persuaded by how “strikingly” similar the language in the PLRA is to the doctrine of exhaustion in administrative law. Id. at 102. It also considered the purposes behind the exhaustion requirement, reasoning that an interpretation that did not require proper exhaustion would render the PLRA “toothless”-enabling a prisoner to bypass prison remedies by simply disregarding or ignoring deadlines. Id. at 95. “Proper exhaustion” means that the plaintiff complied with the administrative “agency's deadlines and other critical procedural rules.” Id. at 90. Complaints and appeals must be filed “in the place, and at the time, the prison's administrative rules require.” Id. at 87 (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002)).

         In Jones, the Court instructed courts to look to the prison's policy itself when determining “whether a prisoner has properly exhausted administrative remedies- specifically, the level of detail required in a grievance to put the prison and individual officials on notice of the claim.” 549 U.S. at 205; id. at 218 (“The level of detail necessary in a grievance to comply with the grievance procedures will vary from system to system and claim to claim, but it is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion.” (emphasis added)). Specifically, Jones determined whether a plaintiff needed to identify the defendant by name during the initial grievance process. Since the MDOC's policy at the time did not require that level of specificity, the Court did not find that the PLRA required it. Id. at 218. However, the current MDOC policy requires this level of specificity. MDOC Policy Directive (“PD”) 03.02.130 (eff. July 9, 2007).

         A plaintiff does not need to show proper exhaustion as a part of his or her complaint. Jones, 549 U.S. at 216. Rather, failure to properly exhaust remedies is an affirmative defense. Id.

         E. MDOC Policy

         The MDOC provides prisoners with a grievance procedure for bringing forward their concerns and complaints. See MDOC PD 03.02.130 (eff. July 9, 2007).[4] The MDOC's grievance procedure consists of steps that a prisoner must follow prior to filing a complaint in court, and each step is accompanied by a time limit. First, the grievant must attempt to resolve the issue with the person involved “within two business days after becoming aware of a grievable issue, unless prevented by circumstances beyond his/her control.” MDOC PD 03.02.130(P).

         If the initial attempt to resolve the issue with the person involved is impossible or unsuccessful, the inmate must then submit a Step I grievance form within five days. MDOC PD 03.02.130(V). If the grievance is accepted, the prison staff is required to respond in writing to a Step I grievance within fifteen days, unless an extension is granted. MDOC PD 03.02.130(X). The policy provides the following instructions regarding the information that needs to be included in a grievance:

The issues should be stated briefly but concisely. Information provided is to be limited to the facts involving the issue being grieved (i.e., who, what, when, where, why, how). Dates, times, places and names of all those ...

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